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2015 DIGILAW 398 (MP)

Vijay Kumar Gupta v. Pankaj Sharma

2015-04-08

B.D.RATHI

body2015
ORDER : Rathi, J. -- 1. The instant petition under section 482 of the Code of Criminal Procedure (for short “the Code”) has been filed by the petitioner having been aggrieved by the order impugned dated 20.1.2015 passed by the revisional Court in Criminal Revision No.467/14 whereby the order dated 15.12.2014 passed by the JMFC, Gwalior in Criminal Case No.5069/2014 was maintained. 2. As per the facts of the case, one private complaint was filed by the respondent-Pankanj Sharma against the petitioner Vijay Kumar Gupta alleging commission of offence under section 138 of the Negotiable Instruments Act (for short “N.I. Act”). After appearance of the petitioner, one application was preferred y him before the trial Court on 3.11.2014 contending that in this case demand notice has not been served upon the petitioner-accused and therefore in the absence of service of notice, the complaint could not have been entertained by the court nor could any cognizance under the Act for the alleged offence have been taken. Said application was dismissed from the Court of trial Magistrate vide order dated 15.12.2014. Against said rejection order dated 15.12.2014, the petitioner preferred Criminal Revision No.467/14 before the Special Judge, Gwalior which came to be dismissed vide the impugned order, hence, this petition before us. 3. Learned counsel for the petitioner contended that both the orders passed by the Courts below are against the facts on record and are liable to be set aside. By inviting attention of this Court on the ambit of the provisions contained in section 138 of the N.I. Act it is contended that the offence will be deemed to have been made out only when the drawer of the cheque fails to make the payment within the specified period of receipt of the notice. Therefore to make a payment of the amount of dishonoured cheque giving of notice in writing is mandatory. Where no such notice making demand for payment is served upon the drawer as contemplated under the provisions of section 138(b) of the Act then in view of further provision given in clause (c) of the said section the drawer of such cheque cannot be able to make payment. According to the counsel, the notice means a notice in writing. Where no such notice making demand for payment is served upon the drawer as contemplated under the provisions of section 138(b) of the Act then in view of further provision given in clause (c) of the said section the drawer of such cheque cannot be able to make payment. According to the counsel, the notice means a notice in writing. It is submitted that in this case no notice was given to the petitioner and therefore no opportunity was available to the accused-petitioner for payment or to raise objection by way of filing reply to the registered demand notice. Therefore, in view of such backdrop of the facts, the complaint filed by the respondent could not have been accepted by the courtsbelow. Accordingly, it is prayed that the petition may be allowed by granting relief as prayed in the petition. 4. Per contra, it is submitted by the counsel for the respondent that in fact registered demand notice was given on 13.2.2014 by the registered A.D. post by mentioning the correct residential address of the petitioner as House No. 30, Vinay Nagar Sector No.2, Bahodapur, Lashkar Gwalior, though it was returned on 16.4.2014 with an endorsement that “addressee left the place”. It is also submitted by the counsel that when complaint was filed, then notice was sent by the Court on the same address. Again, this time the notice returned with an endorsement but in different words that the “petitioner-accused went outside” Thereafter, bailable warrant was issued on the same address and in compliance of that on 20.8.2014 the petitioner appeared before the trial Court. The petitioner was deliberately avoiding the service of notice. Therefore, it is submitted by the counsel for the respondent that in such circumstances of the case, the presumption of service of notice should be drawn against the petitioner since the legal notices were sent by way of registered a/d posts to the drawer at the address of the drawer as available in the record of the complainant. In substance, it is the say of the respondent that since the legal notice was sent by properly addressing the drawer at the address available, the complainant has discharged his part in terms of section 138(b) of N.I. Act. It is therefore submitted that views expressed by the Courts below are well merited and the petition deserves to be dismissed for want of substance. 5. It is therefore submitted that views expressed by the Courts below are well merited and the petition deserves to be dismissed for want of substance. 5. In order to appreciate the submissions of the learned counsel for the parties, the provisions of the law may first be noticed. 6. Section 138 (b) N.I. Act is unambiguous in requiring a demand in writing to be made by the payee by “giving a notice in writing to the drawer of the cheque within 30 days of receipt of intimation that the cheque has dishonored.” In terms of the said provision whenever a statute uses the words “served” or “give” or “sent”, unless a different intention appears, notice would be presumed to be served “properly”, if sent on proper/correct address by registered post. 7. In such cases, there is a continuous chain of events. First there is a dishonor of the cheque. Next is the legal notice to be sent to the drawer within 30 days of the payee receiving an intimation from the Bank of the dishonor of the cheque. Such legal notice in writing has to be addressed to the drawer at the address of the drawer available with the complainant. Such notice has to be received by the drawer and he should fail to make payment within 15 days after receipt of such notice. This chain thereafter continues into the next stage following the failure to make the payment. The complainant or the drawee then approaches the criminal Court with a complaint. 8. In view of the aforesaid, only a short question which calls for consideration of this case is as to whether before serving legal demand notice upon the accused, complaint under section 138 of the N.I. Act directly can be moved in Court? 9. After taking into consideration the facts of the case and on perusal of the registered demand notice, it is clear that notice was returned with an endorsement that ”Addressee left the place” in first turn but ultimately when notice of private compliant was issued by the trial court, it came back with a different endorsement that “petitioner went outside”. When bailable warrant was issued, petitioner appeared before the Court. In para 5 of the complaint, it was stated that the accused deliberately evaded receipt of registered demand notice. When bailable warrant was issued, petitioner appeared before the Court. In para 5 of the complaint, it was stated that the accused deliberately evaded receipt of registered demand notice. It is therefore only a deliberate avoidance of the notice on the part of the accused to escape from the liability which cannot be entertained. So, the things are very clear and the Courts below have not committed any illegality to understand the purport of a valid notice as contemplated under section 138(b) of the Act. 10. In view of the conduct of the petitioner as noticed above, it is evident that at first notice was received unserved by somehow managing to make an endorsement to the effect that “addressee left the place” Thereafter, when notice was sent by the trial Court upon registration of the private complaint, same was returned with endorsement by mentioning in different way “accused went outside”. This endorsement was made on the basis of the information given by the father of the petitioner. Thereafter, when bailable warrant was issued accused petitioner appeared before the trial Court. It all in one breath clearly shows about constructive service of notice. Even otherwise the very purpose of the Act cannot be thwarted by simply refusing the notice. In view of the settled position of law, this Court is of the clear view that deliberate evasion of receipt of registered notice would amount to constructive service of notice. 11. From aforesaid discussions, the issuance of demand notice as contemplated under section 138(b) of the Act prima facie stands proved. Hence, no ground is available to entertain the present petition. Apart that at this preliminary stage, the entire proceedings of the private complaint cannot be quashed without giving opportunity of adducing the evidence to both the sides. The petitioner is therefore left with liberty to raise objection regarding non-receipt of notice or in regard to correct address or otherwise before the trial Court at appropriate stage and the trial Court in turn is directed to consider said objection, after giving opportunity of leading evidence and hearing to both the sides, at the time of deciding the matter finally on merits. 12. Subject to above, the petition stands disposed of. Copy of this order be sent to the concerning Court for compliance.